Saturday, November 2, 2013

Viewpoint: It is a right, not a privilege. So now what?

First Published: 7:01am, Nov 02, 2013

In Malaysiakini's case, the government's lawyer maintained that the granting of a publishing permit was a privilege, not a right.

ALL Malaysiakini asked for was to publish a daily newspaper in English of 40,000 copies to be sold only in the Klang Valley. But this was not acceptable to the Home Ministry, which rejected its application in August 2010. Why? What was the government afraid of?

Sure, as an online news website, Malaysiakini had distinguished itself as a provider of news that the mainstream media often hid from the public for fear of offending the government, and it had won tremendous support from truth-starved Malaysians who wanted to get "the other side of the story", the side that exposed the government's shenanigans and deceptions.

But the number of copies it was asking for its print version was relatively low, and with its distribution restricted to the Klang Valley, where there is a concentration of supporters of the Opposition, the newspaper would be mostly preaching to the converted anyway.

Besides, it was entering a market in which English-language newspapers owned by ruling Barisan Nasional (BN) component parties, like The Star and New Straits Times, were already long entrenched and wielding considerable influence on their readers.

In any case, the Home Ministry did not give any grounds for rejecting Malaysiakini's application. But when Malaysiakini brought the case to the High Court for a judicial review, the minister had to state his reasons in an affidavit.

The case was heard in October 2012. The government's lawyer submitted that the granting of a publication permit was a privilege, not a right. But the judge disagreed.

Justice Abang Iskandar Abang Hashim said freedom of expression was a right guaranteed in Article 10 of the Federal Constitution. And this right included the right to publish a newspaper. He ruled that the ministry's decision was "improper and irrational."

He also considered the minister's reasons for rejecting Malaysiakini's application as stated in his affidavit. One of them stupidly stated that it was because there were already a lot of newspapers in the market and Malaysiakini's entry would affect their profit margin.

The judge rightly pointed out that there was nothing in the Printing Presses and Publications Act (PPPA) that gave the minister power to regulate the market.

But of course! How could it be the job of the Home Minister to ensure that the profit margin of newspaper companies would not be affected?

Was the minister particularly concerned in this case because the newspapers were owned by BN parties, afraid that Malaysiakini might provide competition and affect their sales and therefore their profits? However you look at it, there was no cause for him to be involved in that aspect.

So the case ended with the minister and his ministry getting egg on their faces. Plus the judge quashed the ministry's refusal to grant the permit and asked Malaysiakini to reapply.

But the ministry was not satisfied. It decided to appeal the decision. The appeal was heard last Wednesday.

The government's lawyer maintained that the granting of a publishing permit was a privilege, not a right, "as you have to apply first to get the permit". He also said the High Court judge might not have considered the reasons given by the minister in the affidavit.

He mentioned the one about there being already a lot of newspapers in the market and therefore the need for control. But this was not a bright move. The High Court judge had already dismissed that reason as being invalid. Why bring it up again?

The lawyer also mentioned the reason the minister had given about Malaysiakini's tendency to highlight sensitive and controversial news on its website. That didn't seem like a bright move either. Because Court of Appeals judge Alizatul Khair Othman retorted that security grounds had not been cited as a reason in rejecting the application. So where's the relevance?

In the end, the government's lawyer must have failed to convince the three judges. They unanimously upheld the High Court's decision and dismissed the Government's appeal. And of course, Malaysiakini can re-submit its application.

It is highly important to consider that the Court of Appeal agrees with the High Court judge. It is important because this reaffirms the dictum that publishing a newspaper is a right, not a privilege, contrary to the Government's thinking.

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